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Law Quadrangle (formerly Law Quad Notes)

Abstract

Commenting on David Chambers "The Legalization of the Family: Toward a Policy of Supportive Neutrality"

Professor Burt's "Response" centered on Professor Chambers's discussion of the Marvin case as manifesting conflicting principles of governmental conduct toward the family . Burt questioned whether Chambers had successfully distinguished among the principles of coercion, to which he was opposed, and of governmental facilitation of individual choice, which he celebrated. in discussing the Marvin case.

Summarizing Chambers's view of the case, Burt concurred with the concern that the decision leaves the definition of "fair" treatment to the discretion of the courts. Like Chambers, Burt feared "that the California Supreme Court's willingness to presume agreement almost inevitably will lead judges to impose their moral values on the unmarried couples in these cases .. ". Burt also accepted that this imposition is similar in principle to the kinds of coercive impositions mandated by legislative measures such as the proposed Senate Family Protection Act and traditional state laws against fornication.

What Burt did not accept was Chambers's view that the Marvin decision was coercive primarily because of the interpretive latitude it allowed the courts. To Burt, this extension of judicial authority was no different in principle from the specific holding of the case, that "after the unmarried couple has separated, a court should enforce the specific terms of agreements that the parties had entered at some earlier time when they were happily living together."

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